H1B Visa Lawyer – Filing Tips and Resources

H-1B Nonimmigrant Visa Petitions for FY2010 (October 1, 2009 through September 30, 2010) may be filed starting April 1, 2009. Here are some tips provided by AILA.

How do I get my LCA before April 1, 2009?

As you are unable to submit an LCA for certification to the DOL earlier than six months prior to the beginning date of the period of intended employment (20 CFR §655.730(b)), you must set your employment start date on the LCA prior to October 1, 2009, if you want to have an LCA in hand before the filing period for H-1B cap subject petitions begins on April 1, 2009. For example, you can file and have certified an LCA that has a start date of September 15, 2009. But remember that the LCA end date cannot be longer than 3 years from the start date, so in this example the end date would be September 15, 2009. Also remember to make sure to annotate your I-129 form with a start date of October 1, 2009, but with an expiration date that coincides with the expiration date of the LCA.

What if the U.S. Degree will not be awarded by 3/31/09?

The USCIS has approved H-1B petitions for foreign nationals who have earned degrees from U.S. institutions of higher education, where the foreign national has completed all requirements for the degree, and hence, has “earned” the degree, but the degree has not been conferred. You must submit evidence that the foreign national has completed all requirements for the degree from an official at the school who is qualified to provide that information (e.g. Dean, Registrar or Department head). Be wary of letters prepared by unauthorized employees at the school stating that the student has completed all requirements toward a degree, when in fact there are still examinations or papers to complete. Be mindful that use of such documentation when the student has not completed the program may be considered fraud and such a document may result in the case being denied on the basis of ineligibility at the time of filing.

Can multiple identical petitions be filed for the same foreign national?

The USCIS will either deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund filing fees for duplicative or multiple H-1B petitions. The rules does not prevent related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same foreign national for different positions, based on legitimate business need. Members are reminded to include evidence and/or an explanation in each filing to demonstrate why the filing is not a duplicate.

Will an F-1 nonimmigrant student be able to remain in the U.S. if his or her F-1 status expires before 10/1/2009?

On April, 8, 2008, the USCIS issued a regulation that extended the authorized stay for all F-1 students who have properly (timely) filed an H-1B petition and change of status request whose F-1 status will expire before October 1. The student is in valid status and can continue to work while the petition is pending at the USCIS. If the case is rejected, the student’s F-1 status will dictate the continued ability to remain in the U.S. If the case is accepted under the quota, the student will have an extension that enables the student to remain in the U.S. and continue to work until the requested start date indicated in the H-1B petition takes effect. Therefore it is important to make sure you select change of status in Section 3 of the I-129 form to get this protection.

When must the H-1B petitions be filed?

The USCIS will receive petitions until they determine they have received more than the maximum allowed under the H-1B cap quota. In prior years the quota has been reached on the first day. Under current USCIS regulations, if the USCIS receives a sufficient number of petitions to reach the numerical limit on any one of the first five days, a random selection “lottery” is conducted. If there is a lottery this year, an announcement will be issued by the USCIS. The safest course of action is to file all H-1B petitions on the first available date. H-1B cap-subject petitions should be submitted for delivery to the service center with jurisdiction no earlier than April 1, 2009. In the event the volume of filings triggers the 5-business-day filing rule, the window will end on Tuesday, April 7, 2009.

Will filing using premium processing increase the chances of making the H-1B quota?
Filing an H-1B petition requesting premium processing will not increase the chances of obtaining an H-1B under the quota. If you request premium processing and the case is accepted for processing, the 15 day premium processing window will start on the day the USCIS accepts the case for processing. Please note that one perceived benefit of filing a cap subject H-1B petition with premium processing is that a receipt notice may be issued faster than if you had filed it under regular processing. Therefore, the petitioner and beneficiary may learn faster if there petition has been chosen in any lottery.

Filing Fee Checks
The USCIS prefers separate checks made payable to the Department of Homeland Security for each applicable filing fee (I-129, Premium Processing, Fraud Fee, ACWIA training fee). The USCIS instructions state that an employer can submit one check that contains both the base filing fee and the ACWIA training fee. The fraud fee and premium processing fees must be separate checks.

Please note that it is safest to follow the guidance of separate checks. If you choose to file using a single check and the amount has been calculated incorrectly, the petition will be rejected. However, if the premium processing check is incorrect or unsigned, then only the I-907 should be rejected.

Where to file the petition and what to pay:
See USCIS website. www.uscis.gov
H-1B “cap exempt” petitions, as referenced here, include petitions filed by:
• Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
• Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
• Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C).

Such institutions and organizations can indicate that their H-1B filing is cap exempt by marking Form I-129 (Petition of Non-Immigrant Worker) with a “yes” answer to questions 1, 2, or 3 in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (page 10).

H-1B petitioners are now encouraged to use the following special mailing address for qualifying H-1B cap exempt petitions. To determine if your petition qualifies, please make sure your institution or organization fits one of the categories listed above.

About Jacob J. Sapochnick

Jacob Sapochnick is recognized as one of the most innovative, up and coming Immigration Lawyers in the nation. He devotes 100% of his practice to Immigration Law, representing Corporations, Hotels, Restaurants, and other organizations, as well as, entrepreneurs, and individuals worldwide. He also provides legal support and representation in family sponsored immigration matters.more >>

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